MEMORANDUM OPINION AND ORDER APPROVING SETTLEMENT
AGREEMENT BETWEEN CLASS AND SUBCLASS AND THE CITY OF
ALBUQUERQUE

The
City of Albuquerque (City) and the Mayor of Albuquerque
(together, City Defendants), Plaintiffs and Plaintiff
Intervenors seek final approval of the SETTLEMENT AGREEMENT
BETWEEN THE CITY DEFENDANTS, THE PLAINTIFF CLASS, AND THE
PLAINTIFF INTERVENOR SUB CLASS (Doc. No. 1320) (the
Settlement Agreement) that fully resolves a dispute over the
treatment of class and subclass members by the Albuquerque
Police Department (APD). On August 2, 2016, Plaintiff
Intervenors, on behalf of the subclass of individuals with
mental disabilities, asked the Court to issue an order
requiring the City Defendants to show cause why they are not
in violation of a 2001 consent decree entered in this case.
See PLAINTIFF INTERVENORS' AMENDED MOTION FOR AN
ORDER TO SHOW CAUSE AND FOR FURTHER REMEDIAL RELIEF REGARDING
CITY DEFENDANTS (Doc. No. 1233) (Motion for Order to Show
Cause). Plaintiff Intervenors also alleged that the City
Defendants have allowed the APD to violate subclass
members' rights under the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq.[1] On August 3,
2016, Plaintiffs, on behalf of the class of inmates housed at
the Metropolitan Detention Center (MDC), filed a notice of
joinder in the Motion for Order to Show Cause.

On
November 9, 2016, after full briefing of the Motion for Order
to Show Cause, [2] the Court entered a MEMORANDUM OPINION AND
ORDER (Doc. No. 1245) requiring the City Defendants to appear
and show cause as to whether they are in compliance with: (1)
the SUPPLEMENTAL ORDER TO ENFORCE PREVIOUSLY ORDERED
POPULATION LIMITS AT THE BCDC MAIN FACILITY (Doc. No. 319)
(the 2001 Supplemental Order) requiring the City Defendants
to “[p]rovide direction to law enforcement officials .
. . to issue citations where appropriate and to use the
‘walk through procedures, ' rather than
incarcerating individuals, where appropriate;” (2) the
2001 Supplemental Order requiring the City to “schedule
a meeting or meetings concerning the provision of mental
health services in Bernalillo County. . . . to plan how to
implement an effective jail diversion program for persons
with psychiatric and developmental
disabilities;”[3] and (3) the ADA with regard to detaining
and arresting individuals with mental illnesses or
developmental disabilities to sweep them from the streets.
The Court ordered the parties to participate in limited
discovery. After discovery was completed, the parties entered
into settlement discussions with Special Master Alan C.
Torgerson. The Settlement Agreement is the product of those
discussions and the determined efforts of Special Master
Torgerson.

On
September 11, 2017, the Court held a hearing on final
approval of the Settlement Agreement. Present at the hearing
were counsel for the class, Mark Donatelli, Zach Ives, and
Phil Davis, counsel for the subclass, Peter Cubra, Kelly
Waterfall, and Ryan Villa, counsel for the City Defendants,
Debra Moulton, and counsel for the County Defendants, Luis
Robles, Taylor Rahn, and Kenneth Martinez.[4] At the hearing,
the parties supported their contention that the Settlement
Agreement was fair, reasonable, and adequate, informed the
Court on the fulfillment of the notice requirements, and
addressed two objections to the Settlement Agreement. At the
end of the hearing, the Court signed the Settlement Agreement
(Doc. No. 1320) and asked Ms. Moulton to notify the Court
when the City Council had approved the Settlement Agreement
so that the Court could find that the Motion for Order to
Show Cause had been finally resolved. In a letter dated
October 4, 2017, Ms. Moulton advised the Court that the
parties agreed that the Court's execution and filing of
the Settlement Agreement (Doc. No. 1320) was sufficient to
fully resolve the Motion for Order to Show Cause. Ms. Moulton
then informed the Court that the City ordinances do not
require approval of the Settlement Agreement by the City
Council and that Ms. Moulton received all necessary approval
prior to executing the Settlement Agreement on behalf of the
City.

After
considering the long history of this case, the Settlement
Agreement, the objections, and the arguments of counsel for
the class, subclass, the City Defendants, and the County
Defendants, the Court will grant final approval of the
Settlement Agreement.

I.
STANDARD OF REVIEW

Under
Rule 23,

(e) Settlement, Voluntary Dismissal, or
Compromise. The claims, issues, or defenses of a
certified class may be settled, voluntarily dismissed, or
compromised only with the court's approval. The following
procedures apply to a proposed settlement, voluntary
dismissal, or compromise:

(1) The court must direct notice in a reasonable manner to
all class members who would be bound by the proposal.

(2) If the proposal would bind class members, the court may
approve it only after a hearing and on finding that it is
fair, reasonable, and adequate.

. . .

(5) Any class member may object to the proposal if it
requires court approval under this subdivision (e); the
objection may be withdrawn only with the court's
approval.

Fed. R. Civ. P. 23(e).

The
notice requirements of Rule 23 are designed to satisfy due
process by providing class members the right to notice of
settlement and a right to be heard. Eisen v. Carlisle
& Jacquelin, 417 U.S. 156, 173-74 (1974). Notice,
therefore, “must be reasonably calculated, under all
the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to
present their objections.” Id. at 174
(internal quotation marks omitted).

Under
Rule 23(e)(2), a court may approve a settlement agreement as
fair, reasonable, and adequate if the settlement agreement
meets four criteria: (1) the settlement was fairly and
honestly negotiated; (2) serious legal and factual questions
place the litigation's outcome in doubt; (3) the
immediate recovery is more valuable than the mere possibility
of a more favorable outcome after further litigation; and (4)
the parties believe the settlement is fair and reasonable.
Tennille v. Western Union Co., 785 F.3d 422, 434
(10th Cir. 2015).

II.
BACKGROUND

A.
CONSENT DECREES

This
class action lawsuit was brought in 1995 against the City
Defendants and the County Defendants to address issues
related to the overcrowding of the Bernalillo County jail
system, consisting originally of the Bernalillo County
Detention Center (BCDC) in downtown Albuquerque, New Mexico
and later on, the newer Metropolitan Detention Center (MDC),
now operated by the County. In addition to addressing the
needs of the Plaintiff class, the Court certified a
“sub-class of ‘all persons with mental and/or
...

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